While the Supreme Court ruled on that important element of the case—reversing the plaintiff's life sentence on federal drug charges—the case (minus the invalidated GPS evidence and everything stemming from it) was sent back down to a lower court to be re-tried.

In addition to GPS tracking, federal prosecutors asked for (and obtained) court-ordered access to Antoine Jones' cell-site data in 2005. Late this year, Jones’ attorneys filed a motion to have that location and behavioral data suppressed during a recent pretrial proceeding, citing the precedent Jones set with his Supreme Court hearing.

Last Friday, the judge on the case denied that motion (PDF), siding with federal prosecutors and saying the agents involved were operating in “good faith.”

"Because at the time of the applications in this case it was reasonable for the officers to seek an order authorizing the disclosure of cell-site data, it was also reasonable for them to rely on the magistrate judges’ orders granting those applications," Judge Ellen Segal Huvelle wrote, citing legal precedent for this line of reasoning.

That decision falls generally in line with many other court orders validating law enforcement’s investigative power to surveil and monitor criminal suspects, even if the police can't put a physical device on a car. Such court orders—which can include what’s called a “(d) order,” or a pen register—require a judge’s approval, but not a warrant. These court orders of a lower legal standard likely gave investigators information about who Jones called, when, and where he was when he did so.

As we’ve reported before, other types of high-tech surveillance and monitoring continue being used by law enforcement on a daily basis around the country. Cops are using everything from tap and trace, ping data, license plate surveillance, and other techniques as a way to keep tabs on suspects and innocent citizens without going through the threshold of a judicially reviewed probable-cause-driven warrant. Historically, judges and courts have been reluctant to halt or slow such requests, but there have been some exceptions in recent years.

Still, the judge presiding over the Jones case, Judge Huvelle, declined to rule on the over-arching question that we all want to know: does the Fourth Amendment, which prohibits unreasonable searches and seizures, require that cops get a warrant if they want to track us by any means? Or can our cellphones be used against us as tracking devices?

“The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies,” she wrote.

Privacy experts hoped this would continue to raise broader questions about the boundaries between law enforcement and digital privacy, though.

“In the grand scheme of things, this case is not that big of a deal,” Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, told Ars. “It's saying that in 2005, the law was unsettled and [the judge said] ‘I'm not going to find their conduct unreasonable and because of that I'm not going to touch the legal issue as to whether people have a legal expectation of privacy even though they turned them over to the provider.’”

Reasonable expectations of privacy in the digital age

The judge here cited the “third-party doctrine," which is the idea that individuals have no “reasonable expectation of privacy” when they give up information with a company or government agency.

In this case, any cellphone user has to give up his or her location to the mobile phone company so they can be provided with service. The logic goes that because an individual has given up that location information to the company, it therefore cannot be considered private in the first place.

“There's a ton of questions left unanswered,” Fakhoury added. “It's coming up on the one-year anniversary [of Jones] and it's a good time to reflect and think about what's happened [privacy-wise], and the reality is, not much.”

While this new opinion in the Jones case may be disappointing for privacy advocates including the EFF, which wrote an amicus brief for Jones in the case, there may be a chance for courts to more fully evaluate digital privacy in the future.

After all, in the Supreme Court decision (PDF) Justice Sonia Sotomayor wrote her concurring opinion that the entire third-party doctrine may need to be reconsidered.

“I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements,” she wrote. “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

“This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” she concluded.

Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

The judge here cited the “third-party doctrine” under the Stored Communications Act. This is the idea that individuals have no “reasonable expectation of privacy” when they give up information with a company or government agency.

This seems a little sketchy to me. By that same logic I should be able to write my cell carrier a letter saying my location is only available to the technology system used to provide me the service and is not to be used to locate me for any other purpose. However, I believe the judge would not see that logic because they would probably go with it is still needed for the investigation.

I can't understand the ongoing resistance to reasonable privacy protection in the U.S.. There's no reasonable argument to abridge the spirit of your constitutional privacy protections. They were/are sensible and correct and prevent governmental abuse.

Where's all those folks who stand up for the Constitution on this one?

I can't understand the ongoing resistance to reasonable privacy protection in the U.S.. There's no reasonable argument to abridge the spirit of your constitutional privacy protections. They were/are sensible and correct and prevent governmental abuse.

Where's all those folks who stand up for the Constitution on this one?

I was quite happy when I read her opinion, as it sounded far more sensible than I would have expected from a Supreme Court justice talking about technology-related issues. Good for her.

It seems to me this whole "good faith" exception is really a "The ends justify the means" in reality where so long as the people have the best intentions involved it must be ok. IMO shouldn't be a law, ruling or whatever the heck allowed it to exist as a justification.

In addition the only reason why an individual gives up their location to cell services is because of 911 services and billing to a degree (More of an issue when you used to have local cell phone service plans and could roam) not so some agents can track you that way. I don't see how that's really making your location public or removes the expectation of privacy at all.

The judge here cited the “third-party doctrine” under the Stored Communications Act. This is the idea that individuals have no “reasonable expectation of privacy” when they give up information with a company or government agency.

This seems a little sketchy to me. By that same logic I should be able to write my cell carrier a letter saying my location is only available to the technology system used to provide me the service and is not to be used to locate me for any other purpose. However, I believe the judge would not see that logic because they would probably go with it is still needed for the investigation.

It took me a while to wrap my mind around the "Third Party Doctrine." But I found that it's easier if one just anthropomorphize the cell phone companies or other ISPs.(Corporations are people) Under 5th amendment, one can not be forced to testify against oneself. But with a few narrow exceptions (spousal, clergy, etc.), people are routinely forced to testify against others. And one does not have "reasonable expectation of privacy that others can not be forced to testify about what you say or do in front of others. I don't think this concept is controversial. You can challenge the credibility of the witness or their testimony under the confrontation clause, but you don't have much legal right to prevent others from testifying to began with.

Here is where the need for anthropomorphism comes in. Supposedly, you personally hire a messenger to deliver a sealed message for you. You can argue that you have a reasonable expectation of privacy that the messenger wouldn't know or reveal the content of the message. But you can not prevent the messenger from revealing when and where you hand-off the message and where he/she delivered it to. Even with a confidentiality clause, which you seems to be suggesting, wouldn't prevent them from testifying. For example, during Michael Jackson trial, several Neverland Ranch employees were called to testify as prosecution witness, the confidentiality clause within their employment contract none-withstanding. Now, when one contract with a corporation instead of nature person for messaging service, should that affect the constitutional analysis? So far, U.S. judicial system had being saying "no" mostly, that's why we are still talk about "third-party doctrine."

Anthropomorphization is the key to understand "Third-party Doctrine."

If you have the stomach for a law review article on this, Prof. Orin Kerr's "The case for third-party doctrine" is a good read on this topic:

As I misunderstand this the judge said that one doesn't have a reasonableexpectation of privacy for information that one has given out.Damn. I had a really good followup thingy, but being drunk does bad thingsto short term memory.

Thank you for reading that paper and summarizing it so the rest of us don't really have to. So I guess that does make a lot more sense the way you stated it. It would be interesting to read more into why one of the Supreme Court Justice's says it needs to be reconsidered though.

As stated in the comments section of Wired's version of this article, this ruling is completely and totally wrong. Leon and Sheppard (the cases upon which the "good-faith exception" to the exclusionary rule is based) both specifically pertained to defects in the warrant upon which the police reasonably relied. The police in this case instead relied on a 2703(d) order, which does not have the same procedural effect as a warrant or subpoena (which must be based on probable cause because they are a recognized invasion of privacy).

First, in order for the "good-faith exception" to apply, there must be a defect in a warrant. There was no warrant here. But even if there were, Judge Huvelle would have to make a preliminary determination that there was a defect in the warrant that would make it otherwise unconstitutional to admit. Judge Huvelle shortcut this whole process by using the exception as a means to an end, essentially asserting it without going through the requisite steps necessary to apply it.

Second, a "good-faith exception" requires an actual application of good-faith as well as reliance. Although good-faith is not well defined in the legal world, it is generally recognized as an absolute absence of bad faith. Bad faith has many definitions including a "willful rendering of imperfect performance." As we are now on trial #2, the prosecution knows full and well that the information obtained -- according to 5 of the 9 Supreme Court Justices -- is unconstitutional because it goes beyond the scope of the original warrant, which limited tracking to 10 days. Here, the prosecution is attempting to use the cell tower data in order to circumvent the limitations of the original warrant and put otherwise unconstitutional evidence back into court. Essentially, the government is attempting to "willful[ly] render imperfect performance" of the original 10-day warrant by extending the scope of the search beyond its original limitations. This is definitively bad faith. A good-faith exception cannot apply.

Finally, a "good-faith exception" is applied for the purposes of rewarding commendable police work where the magistrate made a mistake in exercising the warrant and the police, reasonably relying on the constitutionality of the warrant, act commendably. Its purpose is to prevent unnecessarily binding the prosecution for a mistake it did not commit. But this case is fundamentally different because the wrongdoing was not the magistrate's in issuing the original warrant but the police's for extending their search well beyond the original 10-day scope. The police therefore bear the onus of the mistake, not the magistrate.

This needs to be appealed and then eviscerated, although I don't suspect the D.C. Circuit Court will be terribly friendly to Jones given their ruling record. Although SCOTUS decided via plurality in the original case (all 9 agreed that the search was unconstitutional, though they couldn't agree exactly why [4 said trespass, 4 said unreasonable search, Sotomayor agreed with both, giving us 5/9 justices that think that extended location tracking violates Katz' "reasonableness" test and thus constitutes an unreasonable search]), they kicked the can down the road on whether location information can be freely obtained by the authorities without a warrant (and just a court order). Looks like the can didn't go too far, considering the same case might come right back to them.

Disclaimer: IANAL. Law student. Can't give legal advice. This isn't legal advice. Trust my opinion as much as you would trust your grandmother's, your dog's, or your toaster's, assuming none of them have law degrees.

Here is where the need for anthropomorphism comes in. Supposedly, you personally hire a messenger to deliver a sealed message for you. You can argue that you have a reasonable expectation of privacy that the messenger wouldn't know or reveal the content of the message. But you can not prevent the messenger from revealing when and where you hand-off the message and where he/she delivered it to. Even with a confidentiality clause, which you seems to be suggesting, wouldn't prevent them from testifying. For example, during Michael Jackson trial, several Neverland Ranch employees were called to testify as prosecution witness, the confidentiality clause within their employment contract none-withstanding. Now, when one contract with a corporation instead of nature person for messaging service, should that affect the constitutional analysis? So far, U.S. judicial system had being saying "no" mostly, that's why we are still talk about "third-party doctrine."

The problem is that we aren't using a messenger here, we are using a computer system. It is perfectly capable of forgetting all of the location data the second you hang up the phone, such that the third party would have absolutely nothing to hand over to the police. The police don't like this, so they petition for laws requiring that phone companies and ISPs retain logs on your activity for a certain period of time. Thus, these logs only exist due to the action of the government. In this case, its ridiculous to think of the ISPs and carriers as innocent third parties, when they are actually acting as agents of the police the entire time.

Unfortunately, most people misunderstand the United States Supreme Court's ruling in United States v. Jones. The five-Justice majority held that the physical trespass of installing a GPS tracker constituted a "search." However, the Fourth Amendment prohibits unreasonable searches. The majority explicitly declined to rule whether a warrantless installation of a GPS tracker constituted an unreasonable search. So this of course leaves lots of room for lower courts to decide what is and what is not an unreasonable search. It can be argued that Jones also had a five-vote controlling opinion by counting all the concurrences (Sotomayor, Alito, Ginsburg, Breyer, and Kagan) that the GPS tracker was a search because it was a violation of Jones' reasonable expectation of privacy.

When you voluntarily give information to third parties, you are giving up your expectation of privacy. Unfortunately, court opinions are silent about controlling the scope of disclosure when you voluntarily give out information. One of the arguments in the Jones case at the D.C. Circuit level is that the actual use of your cell phones constitutes a voluntary disclosure of your position, because it is necessary to give your cell site position to the wireless carrier to operate your phone. However, it is important to note that the D.C. Circuit didn't decide that. Instead, it begged the question, and said that if there was any violation of the Fourth Amendment, the "good faith exception" under United States v. Leon, 468 U.S. 897 (1984) applied.

It's all well and good to say they were acting in good faith based on unsettled law, but the law is still not settled on this point and never will be if every judge takes the lazy coward's way out. Here, it's an abdication of responsibility.

The problem is that we aren't using a messenger here, we are using a computer system. It is perfectly capable of forgetting all of the location data the second you hang up the phone, such that the third party would have absolutely nothing to hand over to the police. The police don't like this, so they petition for laws requiring that phone companies and ISPs retain logs on your activity for a certain period of time. Thus, these logs only exist due to the action of the government. In this case, its ridiculous to think of the ISPs and carriers as innocent third parties, when they are actually acting as agents of the police the entire time.

I just came back from reading Judge Huvelle's opinion. As I was reading what you wrote, one of the quote from that opinion cam to mind.

Quote:

Quoting SCOTUS opinion from Katz and Kyllo:"a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable."

You don't like the fact that Congress passed data retention law, fine. It come down to how we as a society determine whether a particular "expectation of privacy" fail into "reasonable" or "unreasonable." A law passed by Congress and signed by POTUS certainly have some weight in determine what "the society recognizes as reasonable." I am not saying "Jones, you stupid criminal, didn't you watch it on C-Span? Congress passed a law saying Cell phone companies have to keep logs and have to share those with police. You shouldn't had expected your cell-site data to be private." But how is bring up data retention law help your point? Can "expectation of privacy" contrary to the laws of the land be considered "reasonable"? A district court judge have to (ideally) deal with the law as it is, not what the law "should be."

So, essentially the US Supreme Court decided to let Jones go back through all the appeals again to see if he can get this new question, which really they should have answered the first time around, answered instead of just answering it.

So, wait a minute. I just signed all my health records over to my new doctor. Those records are no longer private?

Come to think of it, I also signed away my address to the post office when I bought my house. Is my mail public domain?

Seems like really sketchy logic to me.

I believe the word is perverse, not sketchy.

Here's an example. We were forced to give our SSN in order to get a cell phone. We didn't provide this info voluntarily and there was no need for the carriers to ask for it. Especially if we were willing to pay the phone + plan in advance. They required it because of the Patriot Act [you have got to be kidding me].

The real reason they did it is that with this precious info, carriers will be able to provide tracking services to the police for a buck or two. They won't disclose it in the financial statements but everybody knows they get revenue from it. It's a perversion of decency any way you look at it all in the name of providing a mandatory 911 service. Whether you like it or not. Whether you have reasonable expectations of privacy or not.

I have witnessed what police states are capable of and I'm doing whatever is in my power to prevent the US to become one. Without the balance of strong civil protections every time there is a new unbalance in society it always weighs on the police's side. Seldom on the citizens side. The consequences have always been abuse of authority. It may not seem obvious today but it will be the day you get detained for no reason and you have no recourse, no appeal, no channel to redress your grievances.

It always begins with seemingly small, innocuous invasions of privacy. I'm aware it could be a lot worse. But it could be a lot better, that's the point.

So, wait a minute. I just signed all my health records over to my new doctor. Those records are no longer private?

Come to think of it, I also signed away my address to the post office when I bought my house. Is my mail public domain?

Seems like really sketchy logic to me.

You are all turned around...your address is public domain, more or less. It gets published in phone books for all to see. Everybody can know where you live. Nobody else can open your mail though. Do see the difference.

So, wait a minute. I just signed all my health records over to my new doctor. Those records are no longer private?

Come to think of it, I also signed away my address to the post office when I bought my house. Is my mail public domain?

Seems like really sketchy logic to me.

I believe the word is perverse, not sketchy.

Here's an example. We were forced to give our SSN in order to get a cell phone. We didn't provide this info voluntarily and there was no need for the carriers to ask for it. Especially if we were willing to pay the phone + plan in advance. They required it because of the Patriot Act [you have got to be kidding me].

The real reason they did it is that with this precious info, carriers will be able to provide tracking services to the police for a buck or two. They won't disclose it in the financial statements but everybody knows they get revenue from it. It's a perversion of decency any way you look at it all in the name of providing a mandatory 911 service. Whether you like it or not. Whether you have reasonable expectations of privacy or not.

I have witnessed what police states are capable of and I'm doing whatever is in my power to prevent the US to become one. Without the balance of strong civil protections every time there is a new unbalance in society it always weighs on the police's side. Seldom on the citizens side. The consequences have always been abuse of authority. It may not seem obvious today but it will be the day you get detained for no reason and you have no recourse, no appeal, no channel to redress your grievances.

It always begins with seemingly small, innocuous invasions of privacy. I'm aware it could be a lot worse. But it could be a lot better, that's the point.

I totally agree with you, I've witnessed during a trial a prosecutor basically telling a physician assistant to lie on the stand and in the end his own notes contradicted him. It was pretty obvious that he was told what to say by the prosecution. The individual on trial was eventually found not guilty of numerous felonies by the jury and none one was held accountable for lying under oath. Another witnessed also perjured themselves and never faced any charges.

Sadly many people believe this sort of thing only occurs on television or in banana republics.

Come to think of it, I also signed away my address to the post office when I bought my house. Is my mail public domain?

Seems like really sketchy logic to me.

Did you brought your house through a trust or other corporate entities? If you name on the deed? If so, than yes, those are public information at least in my state and most states I am aware of. Many county clerk-recorders allow people to search those public records on-line. In my county, you can search for deed transfers by party names. They don't allow search by address, but it's trivial to find the assessed parcel number by doing a quick Zillow search.

What about all the ghost cell towers the government has where it can track people's movements without providing voice/data services just by watching your phone's identifier change its position relative to their towers? Is any warrant needed for that?

What about all the ghost cell towers the government has where it can track people's movements without providing voice/data services just by watching your phone's identifier change its position relative to their towers? Is any warrant needed for that?

Better buy multiple cheap phones and sim cards. It's not hard to find certain phone (they all have IMEI number) and to correlate you with sim card if you use phone on regular basis. But it would only make it harder to track you.

But how is bring up data retention law help your point? Can "expectation of privacy" contrary to the laws of the land be considered "reasonable"?

How are these even questions?

Bringing up the data retention law IS the point. The government's right hand is using the third party doctrine to obtain information it couldn't otherwise obtain while the left hand is threatening with violence anyone that doesn't become a third party. The obvious answer to the third party doctrine is to find a third party whose networks don't store logs but that's impossible because the government made it impossible.

If the laws of the land define what is considered a reasonable expectation of privacy then how could any law be thrown out on the constitutional grounds that it violates a reasonable expectation of privacy? The fact of the matter is the law can contradict itself, does not represent the opinion of the people it governs a priori, and is not infallible.

The judge here cited the “third-party doctrine” under the Stored Communications Act. This is the idea that individuals have no “reasonable expectation of privacy” when they give up information with a company or government agency.

This seems a little sketchy to me. By that same logic I should be able to write my cell carrier a letter saying my location is only available to the technology system used to provide me the service and is not to be used to locate me for any other purpose. However, I believe the judge would not see that logic because they would probably go with it is still needed for the investigation.

It took me a while to wrap my mind around the "Third Party Doctrine." But I found that it's easier if one just anthropomorphize the cell phone companies or other ISPs.(Corporations are people) Under 5th amendment, one can not be forced to testify against oneself. But with a few narrow exceptions (spousal, clergy, etc.), people are routinely forced to testify against others. And one does not have "reasonable expectation of privacy that others can not be forced to testify about what you say or do in front of others. I don't think this concept is controversial. You can challenge the credibility of the witness or their testimony under the confrontation clause, but you don't have much legal right to prevent others from testifying to began with.

Here is where the need for anthropomorphism comes in. Supposedly, you personally hire a messenger to deliver a sealed message for you. You can argue that you have a reasonable expectation of privacy that the messenger wouldn't know or reveal the content of the message. But you can not prevent the messenger from revealing when and where you hand-off the message and where he/she delivered it to. Even with a confidentiality clause, which you seems to be suggesting, wouldn't prevent them from testifying. For example, during Michael Jackson trial, several Neverland Ranch employees were called to testify as prosecution witness, the confidentiality clause within their employment contract none-withstanding. Now, when one contract with a corporation instead of nature person for messaging service, should that affect the constitutional analysis? So far, U.S. judicial system had being saying "no" mostly, that's why we are still talk about "third-party doctrine."

Anthropomorphization is the key to understand "Third-party Doctrine."

If you have the stomach for a law review article on this, Prof. Orin Kerr's "The case for third-party doctrine" is a good read on this topic:

The problem I have is that the argument is being held together by corporations being treated as people and assuming that computer systems should be treated as people. I do understand that the courts view corporations as people.

I also understand there has to be a line drawn at some point, I just do not like where they have drawn the line as Caine775 points out it is a computer system that does not have to remember and could easily forget.

In addition the only reason why an individual gives up their location to cell services is because of 911 services and billing to a degree.

But I'm not able to opt-out of 911 service. Since the state insists we all have 911, the state is forcing us to give up our location, either to a 3rd party or to the state itself.

Of course we're not able to opt-out or cross out any part of a contract we sign with a large company if we don't agree with that part. Like when you buy something in the Google Play store, the app's permissions are set and you can't change them. For example a weather app that wants your location. If I'm happy manually filling in where I want a forecast can I disable that function? Nope. It's all take it or leave it.

As stated in the comments section of Wired's version of this article, this ruling is completely and totally wrong. Leon and Sheppard (the cases upon which the "good-faith exception" to the exclusionary rule is based) both specifically pertained to defects in the warrant upon which the police reasonably relied. The police in this case instead relied on a 2703(d) order, which does not have the same procedural effect as a warrant or subpoena (which must be based on probable cause because they are a recognized invasion of privacy).

First, in order for the "good-faith exception" to apply, there must be a defect in a warrant. There was no warrant here. But even if there were, Judge Huvelle would have to make a preliminary determination that there was a defect in the warrant that would make it otherwise unconstitutional to admit. Judge Huvelle shortcut this whole process by using the exception as a means to an end, essentially asserting it without going through the requisite steps necessary to apply it.

Second, a "good-faith exception" requires an actual application of good-faith as well as reliance. Although good-faith is not well defined in the legal world, it is generally recognized as an absolute absence of bad faith. Bad faith has many definitions including a "willful rendering of imperfect performance." As we are now on trial #2, the prosecution knows full and well that the information obtained -- according to 5 of the 9 Supreme Court Justices -- is unconstitutional because it goes beyond the scope of the original warrant, which limited tracking to 10 days. Here, the prosecution is attempting to use the cell tower data in order to circumvent the limitations of the original warrant and put otherwise unconstitutional evidence back into court. Essentially, the government is attempting to "willful[ly] render imperfect performance" of the original 10-day warrant by extending the scope of the search beyond its original limitations. This is definitively bad faith. A good-faith exception cannot apply.

Finally, a "good-faith exception" is applied for the purposes of rewarding commendable police work where the magistrate made a mistake in exercising the warrant and the police, reasonably relying on the constitutionality of the warrant, act commendably. Its purpose is to prevent unnecessarily binding the prosecution for a mistake it did not commit. But this case is fundamentally different because the wrongdoing was not the magistrate's in issuing the original warrant but the police's for extending their search well beyond the original 10-day scope. The police therefore bear the onus of the mistake, not the magistrate.

This needs to be appealed and then eviscerated, although I don't suspect the D.C. Circuit Court will be terribly friendly to Jones given their ruling record. Although SCOTUS decided via plurality in the original case (all 9 agreed that the search was unconstitutional, though they couldn't agree exactly why [4 said trespass, 4 said unreasonable search, Sotomayor agreed with both, giving us 5/9 justices that think that extended location tracking violates Katz' "reasonableness" test and thus constitutes an unreasonable search]), they kicked the can down the road on whether location information can be freely obtained by the authorities without a warrant (and just a court order). Looks like the can didn't go too far, considering the same case might come right back to them.

Disclaimer: IANAL. Law student. Can't give legal advice. This isn't legal advice. Trust my opinion as much as you would trust your grandmother's, your dog's, or your toaster's, assuming none of them have law degrees.

I didn't read the Wired article, but I was wondering the same thing. The good faith exception developed from a situation where there was an actual warrant issued.

Come to think of it, I also signed away my address to the post office when I bought my house. Is my mail public domain?

Seems like really sketchy logic to me.

Did you brought your house through a trust or other corporate entities? If you name on the deed? If so, than yes, those are public information at least in my state and most states I am aware of. Many county clerk-recorders allow people to search those public records on-line. In my county, you can search for deed transfers by party names. They don't allow search by address, but it's trivial to find the assessed parcel number by doing a quick Zillow search.

The problem I have is that the argument is being held together by corporations being treated as people and assuming that computer systems should be treated as people. I do understand that the courts view corporations as people.

I also understand there has to be a line drawn at some point, I just do not like where they have drawn the line as Caine775 points out it is a computer system that does not have to remember and could easily forget.

There are people responsible for and accountable for data churned out by machines. As it should- no one is prepared to accept that there can be machines completely out of human control.

People EXPECT e-mail to be like mail, except electronic. This means that people expect a Court Order to be needed to open your mail.

Ghoulgol opens every Gmail you write and reads every bit of it. This is insanity in breaching privacy expectations and the Supreme Court simply stands by.

The continuing *notion* that its *good for our economy* - the premise for nearly every GOP political law-making action - simple is wrong. Its good for a handful of people's economy, perhaps, at the cost to every Citizen. Reducing rights to 'when they apply to making more money' is the cornerstone of GOP banality today. Its clear we need economic change, but putting the law's benefits in the hands of the few isn't working.

Privacy law, where a Judge decides if your location-data and any other data you don't *explicitly* offer, is the right path. Assuming citizens *know* what their EULA states - is absurd. 51 pages of EULA for Google. Has anyone, literally *anyone* that isn't an attorney *read it*? Not likely, so the concept that Privacy is signed away with a EULA isn't reasonable to expect.

Warrant or not, Judge's signature or not, here's the deal, they still have to dfollow DUE PROCESS. They can;t just request your data on a whim, and they can;t just track you even if they think you might be up to something nefarious. they have to have an actual crime that has occured that someone reported or a cop actually witnessed, have you or your device associated with that crime, open a case file, do a bunch of documenhtation, PAY A FEE (which instantly opens the door to external and pubnlic record audits), document and secure the collected information, and then act upon it.

By going through Due process, and given the extremely lean measures of a warrant, even if one was required, having gone through the steps noted above, it is essentially guaranteed to be issued. Unlike whta you see on TV, a judge can't simply deny a warrant because they want to if it is fuilled out correctly and is associated with finding a specific person or thing related to a reported crime. If the document is complete, it;s issued.

Without a warrant, assuming they follow due process, the evidence is REVIEWED by a judge before it;s admissible to court. If it was colelcted importly (aka, due process was not followed), then it is inadmissable as if it was never collected, and then you have a strong case to countersue the police and win the lotto.

So, what really is a warrant? It's a very simple document whereby the judge essentially gives permission to collect certain evidence before he sees it, as opposed to seeing the evidence collected and ruling on it's admissibility later. Why do we have these? Why that step? It's to prevent the practice of entering the curtailment zone of a person's private life and interupting their daily routine without overdight, and also to limit what neighbors see unnecessarily (cops going in people's houses immediately creates a rumor mill about why, so limiting that direct interaction with advance opermission, simply clarifying it;s "reasonable" in advance by an independent eye, helps add that simple and small layer of protection). When we're talking about data in public, like your cell phone, data that can be collected without ANY impact to you in any way, and it's data that would otherwise be granted anyway following due process, then a warrant is unnecessary because it does not impact your life.

We have chosen in this country to still require a judicial signature if not formal warrant to collect "tracking data" on you, though, your CURRENT location at one specific time in real-time is allowed even without that. however it STILL requires documentation of due process. A cop can't simply look up where a friend's wife is at any moment because a charge will be incurred from a phone company for that reference, that reference is public record, and audits apply and ask WHY that was collected, and the cop had better have an answer and supporting documentation or he'll be suspended, potentially the department woudl be sued, and he could be fired and lose his pension. Even without a charge, the phone company's record of cooperation with police is public record and can be audited by anyoe who files an FOIA request.

Because we allow our government to be open to such 3rd party requests, because we have both internal and external watchdog groups ensuring due process is met, you have layer after layer after layer of protection from this kind of abuse. Even though the man's GPS data was removed and the verdict temporarily overtunred, because they had ample OTHER evidence, its likely a conviction will still be reached and he'll still go to jail. However, if that was the only piece of evidence, he could sue over wrongful conviction, and would likely win many fold more dollars than he lost plus sufficient compensation for his suffering (aka millions), though since he is guilty, and since a jury actually decides those awards, he might not get so much if anything at all so long as the jury sees the efforts were reasonable and that they were not at-the-time illegal to do.

Our prosecution model is slow, methodical, and requires copious documentation which is open to public review. Also, the police are continually underfunded and understaffed, so unless they have a reason to be persuig you, they're NOT interested in your data in any way. They want to solve crimes that happened they know about, they don;t need the excess workload of ones they don;t know about where no victim has come forward. We the people are not willing to fund them to that level, so they don't go to that level. That said, if they DO have an interest in you, and can document it, a warrant is essentially guaranteed and they'll get the data/evidence they want if it exists. All these laws just ensure documentation to eliminate the potential for abuse, they in no way actually inhibit law enforcement itself.

In recent years (all through time actually) there have been clarifications needed to laws to account for technolgoy and changes in society and police process. Not being able to install a GPS on a car without a warrant is not really a setback since they can still do so with a warrant, it just effected this one case while we clarified the law. Thankfully, they still have ample additional evidence on the table and it's unlikely to be a "loss" for law enforcement, and no actual abuses of power are actually considered here (they did not maliciosly mark his car in the hopes to find a crime, they long and well knew about it and did so in their eyes properly, with full documentation, SCOTUS just wanted a tuny bit more because they ruled the car does have a curtailment zone like your house does, and this merely enforced "consistancy" in application.

And search for transaction by name. For example, if you don't already know where The Dakota building is, you can find its address by search Yoko Ono's name.

With all due respect, those things should not be public domain. It makes it way too easy for people to stalk other people.

When we are dealing with reasonable/unreasonable expectation of privacy, we deal with the laws/customs on the books, not what they "should" be.

The deed recording as public documents in NYC went back to Dutch rule. And British common law of land recording is broadly similar in term of public disclosure. That ship had sailed centuries ago. Some time useful studies are made from themhttp://www.nytimes.com/2006/03/05/magaz ... d=all&_r=0

Quote:

The Dutch have always been meticulous recordkeepers, so it is possible to follow this house, and others nearby it on Amsterdam's famous Herengracht, or Gentlemen's Canal, as they make their way through the centuries: to watch the succession of doctors, diamond cutters, confectioners, merchants and politicians move in and out, to glimpse the births and deaths, to watch careers and families unfold. More to the point, it's possible to follow the successive property transactions in this area of Amsterdam from the time it was developed to the present.

In itself, this isn't exceptional: other European cities have land registers that date to the Middle Ages.

Good luck trying to argue in court that such system violate 4th amendment and that warrant is required for law enforcement to access recorded deeds, etc.

Again from Katz and Kyllo

Quote:

"a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable."

So if one is worried about stalkers, one can obfuscate the paper trails by buying real estate through trust/corporate entities(especially non-domestic ones) . One can argue that one shouldn't have to, but that's not currently a valid 4th amendment argument AFAIK.

My view is the same with data retention laws. If there are public disclosed laws on the book, that served as a notice one can not reasonably expect some information to remain private. The longer the law/custom/system remain in place, it become less reasonable for people to assert expectation of privacy to the contrary.

Better buy multiple cheap phones and sim cards. It's not hard to find certain phone (they all have IMEI number) and to correlate you with sim card if you use phone on regular basis. But it would only make it harder to track you.

Here in NL the regularly catch drug dealers (using a cash-bought SIM and no registration) because they also carry around their 'normal' phone (with a subscription).

If they have a weeks worth of location data for both, they can statistically link one to the other since the longer they stay together it becomes extremely unlikely that someone holding the unregistered phone is following them around everywhere they go.

They are also employing data-mining, if they arrest a drug dealer all numbers that called their phone in the last 3 months go into a database (of suspected drug users) and any other number that is later called by more than 2 or 3 numbers in that database is automatically flagged as a possible dealer.

If they were to use it to try and arrest every drug user and drug dealer (which would very well be possible) the public would surely resist. But instead they use it to keep taps on drug users, for instance if they see your number x amount of times, you get an invitation to talk to an addiction specialist (doctor). The dealers are pretty much left alone as long as they don't sell bad quality drugs or use violence. This is mainly because they know that if they arrest one, a new one will appear instantly, possibly selling bad quality drugs and putting the public at more risk than before.

If our government was waging a War On Drugs I would surely resist their data-mining, especially because I buy a little now and then, but as it is they leave me alone and the police is effectively screening the dealer(s) I buy from.

This situation requires that the public trust the government, which would quickly erode if they went on a rampage against drugs. I wouldn't like to live in a country where I would have to doubt whether the government has the best interests of the public in mind or already know for a fact that they don't.

We inherently trust our government, which means that such a case could not happen here since evidence rarely gets tossed, even if there were mistakes made or laws broken while collecting it. If the evidence is relevant, a judge will consider it. This works because we trust the government to actively work to prevent any mistakes in the future and to immediately fire any government employee that breaks a law, so we don't have any police officers cutting corners to make their job easier, because it would cost them their job and put them in jail.

I don't see how the US government can ever get the public to trust them in this way, since they seem to abuse every freedom they are given until years later a judge stops it and then they simply start abusing something else while that lasts. You're bound to fight your own government until there are no more rights they can erode. If I were an US citizen that would make me very sad

Our prosecution model is slow, methodical, and requires copious documentation which is open to public review. Also, the police are continually underfunded and understaffed, so unless they have a reason to be persuig you, they're NOT interested in your data in any way. They want to solve crimes that happened they know about, they don;t need the excess workload of ones they don;t know about where no victim has come forward. We the people are not willing to fund them to that level, so they don't go to that level.

Automatic license plate recognition databases are just one example of how that is not true with today's technology, if it was ever true at all.

Cell-site data is extremely broad and often encompasses many people other than the suspect. Again, in contradiction to the narrow scope of investigation you are saying is the rule.

The fact that the FBI had to turn off 3,000 warrantless GPS trackers after that ruling also suggests that their investigation was a bit broader than you suggest. 3000! And that is just at the federal level alone.

I can't understand the ongoing resistance to reasonable privacy protection in the U.S.. There's no reasonable argument to abridge the spirit of your constitutional privacy protections. They were/are sensible and correct and prevent governmental abuse.

Where's all those folks who stand up for the Constitution on this one?

Thing is, since the advent/actions of 9/11, the government is, even if not by sound reasoning, chipping away at privacy due to concerns, fears, ET AL when it comes to terrorism on American soil(or even in general). And in so doing this, it is bleeding over in to everyday policing and crime/crime solving issues for local, state and federal agencies. Technology in and of itself is making things easier for those interested in our daily and private goings on(be it legitimate or criminal it seems) and it appears that the powers that be are willing to let the aforementioned agencies have easily, ready access to what they need, when they need it and are not willing or capable to put this up to a question where it needs to be addressed and make this a due process issue as it should be. Per the article, it does look like Sotomayor is trying to get a discussion going on this, and hopefully it take off soon. Technology is as usual outpacing laws and governance.